Apr 08 2012

Squat and Spread Your Cheeks

(10 am. – promoted by ek hornbeck)

Thanks to five out of nine Supreme Court justices at the urging of the Obama administration that’s what 14 million Americans a year can expect to hear when they get arrested and sent to jail.  That includes several hundred thousand people per year arrested for minor infractions, everything from having unpaid traffic tickets to, oh, what is it that protesters get charged with… disorderly conduct, public nuisance or irritating an idiot that has mistakenly been issued a badge, a gun and a can of mace.

Supreme court justices allow for routine strip-searches of inmates in US jails

By a 5-4 vote and splitting along conservative-liberal ideological lines, the high court ruled that privacy rights involving the searches were outweighed by security concerns by jails about a suspect hiding drugs, weapons or other contraband.

The decision could have broad impact as nearly 14 million Americans spend time in jail or prison every year, including an estimated 700,000 people in jail for less serious misdemeanor offenses.

The justices upheld a ruling by a US appeals court based in Philadelphia that it was reasonable to search everyone entering a jail, even without suspicion of any criminal activity.

The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.

In Justice Breyer’s dissent in Florence vs Board of Chosen Freeholders he makes clear just what sort of searches that the Supreme Court at the urging of the Obama administration has given a blanket imprimatur to:

‘a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.’

You would think that the basic details of the case before the court would have militated against this sort of decision.  

Albert Florence, his wife and little boy were on their way to his parents’ home in 2005, when they were pulled over by a state trooper. Mrs. Florence was at the wheel, but the trooper’s roadside state records check showed a seven-year-old outstanding arrest warrant for Albert Florence for failing to pay a fine. Florence said he had paid the fine, and pulled out a receipt, which he kept in the car. But the trooper said there was nothing he could do. Florence was handcuffed and taken to the local county jail.

The state would later admit it had failed to properly purge the arrest warrant, but at the time of the arrest, the error turned into a “nightmare,” Florence said. He was held in jail for seven days and strip-searched twice.

Apparently a majority of the Supreme Court justices and the Obama administration feel that humiliating strip searches are the appropriate way to treat innocent citizens who have wound up in jail due to the justice systems own errors.  They also think it’s a good idea to subject citizens to degrading and humiliating searches who have performed such heinous and devious crimes as failing to use their turn signal, riding a bicycle without a bell or driving without using their seatbelt.

As Orrin Kerr explains on Scotusblog, this decision is an extension of a previous decision Atwater v. City of Lago Vista which allows police to arrest and detain citizens for minor offenses:

Florence is really a follow-up to Atwater v. City of Lago Vista, in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses – in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

Some of the justifications for this decision written by Anthony Kennedy support subjecting citizens who commit minor offenses to a strip search without some reasonable suspicion are almost laughable:  

“People detained for minor offenses can turn out to be the most devious and dangerous criminals. Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate.  Police stopped serial killer Joel Rifkin for the same reason.  One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.”

One is left to wonder how a denigrating, humiliating strip search performed by some yahoo at a local pokey would have prevented or diminished the intention of Timothy McVeigh to express his anger by bombing a government facility or for that matter cooled the ardor of one of the 9/11 hijackers for retaliation against the government.  One is also left to wonder what color the sky is in Justice Kennedy’s world when he asks in oral argument whether citizens arrested for minor offenses might prefer an institution where every inmate at intake is similarly subjected to humiliation prior to entry into the institutions population.

While the Supremes regale us with mildly amusing daffy illogic, Scott Horton points out the darker side of their decision:

The decision reflects the elevation of the prison industry’s interest in maintaining order in its facilities above the interests of individuals. And it does so by systematically misunderstanding the reasons behind strip searches. Kennedy insists that they are all done for the aim of fostering order, and he backs up this position with exemplary bits of pretzel logic. For instance, he suggests that a person stopped for failing to yield at an intersection may well have heroin taped to his scrotum, and may attempt to bring it into the prison to which he is taken. In advancing such rationales, the Court ignores the darker truth about strip searches: they are employed for the conscious humiliation and psychological preparation of prisoners, as part of a practice designed to break them down and render them submissive.

Just as the Florence decision was being prepared, the Department of Defense released a previously classified training manual used to prepare American pilots for resistance to foreign governments that might use illegal and immoral techniques to render them cooperative. Key in this manual are the precise practices highlighted in Florence. Body-cavity searches are performed, it explains, to make the prisoner “feel uncomfortable and degraded.” Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity. The value of this tool has been recognized by authoritarian governments around the world, and now, thanks to the Roberts Court, it will belong to the standard jailhouse repertoire in the United States.

The intentions of the Obama administration may have been telegraphed by DOJ lawyer Nicole Saharsky appearing in behalf of the Obama administration, whose first example in her argument in support of blanket suspicionless strip searches was this:

Protesters, for example, who decide deliberately to get arrested. They might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think, hey, I’m going to put that on my person; I just need to get it somewhere that’s not going to be found during a pat-down search. And then potentially they have the contraband with them.

Has the Obama administration become so coarsened by fighting the “War on Terror” that it has lost all sense of proportion?  Will an administration that has already subjected Bradley Manning to cruel and inhumane treatment and subjected him to a regimen of denigrating forced nudity move on to using that weapon against average Americans?

Naomi Wolf writes in the Guardian:

The most terrifying phrase of all in the decision is justice Kennedy’s striking use of the term “detainees” for “United States citizens under arrest”. Some members of Occupy who were arrested in Los Angeles also reported having been referred to by police as such. Justice Kennedy’s new use of what looks like a deliberate activation of that phrase is illuminating.

Ten years of association have given “detainee” the synonymous meaning in America as those to whom no rights apply – especially in prison. It has been long in use in America, habituating us to link it with a condition in which random Muslims far away may be stripped by the American state of any rights. Now the term – with its associations of “those to whom anything may be done” – is being deployed systematically in the direction of … any old American citizen. …

Remember, you don’t need to have done anything wrong to be arrested in America any longer. You can be arrested for walking your dog without a leash. The man who was forced to spread his buttocks was stopped for a driving infraction. I was told by an NYPD sergeant that “safety” issues allow the NYPD to make arrests at will. So nothing prevents thousands of Occupy protesters – if there will be any left after these laws start to bite – from being rounded up and stripped naked under intimidating conditions.

Forced nudity and humiliation have a long history of use by repressive regimes to control populations.  From the use of these tactics in slavery to their application by the American military in various prisons during the Bush and Obama administrations, America has a dark side to its history.

The Bush and Obama administrations both have focused on bringing the tools and tactics of the “Global War on Terror” to the “homeland.”  We’ve seen the growth of the warrantless wiretapping program of the Bush administration grow into the behemoth capacity of the “Stellar Wind” project.  We’ve seen many of the most awful Bush administration interpretations of the Authorization for Military Force in the codified in the NDAA.  We’ve seen police forces across the country militarized in the name of fighting terror and we’ve seen those militarized police deployed against domestic political dissent.

The Obama administration has now urged and received from the Supreme Court yet another tool of social control that may be applied in a less than savory manner.  Even if the Obama administration does not abuse this authority, future administrations and other authorities may.  At one fell swoop the Supreme Court has expanded the executive’s power and offered a rationale for every abusive jerk in police forces and jails from big cities to the dinkiest jerkwater jurisdiction to abuse the powers vested in them to humiliate and abuse citizens.  

Dante had better get busy creating another circle.

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